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09 October 2015

Object to production of Wife's father's Will (solicitor had deposed to contents of Will) – Sadek and Ors & Hall and Anor [2015] FamCAFC 23

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The case of Sadek and Ors & Hall and Anor [2015] FamCAFC 23 involved property proceedings between the Husband and Wife in the Family Court of Australia.

In the course of seeking financial disclosure from the Wife, the Husband asked the Wife for details of her interest in the estate of her deceased father.

The Wife’s position was that she did not know whether she had any interest her late father estate.

The Husband issued subpoenas to the Wife’s mother and 3 brothers for the production of the father’s Will and Probate.

The Wife’s mother and 3 brothers objected to the subpoenas, arguing that an Affidavit sworn by their solicitor as to the relevant parts of the Will removed its production and that the Judge could inspect the Will to determine whether the Affidavit fully disclosed the relevant information.

Dawe J dismissed the objection, saying at paragraph 39 “Simply because a legal practitioner provided particulars of the clauses in the Will which he considers to be relevant does not overcome the obligation to produce the relevant document in its entirety if the document is available.”

On appeal (which was dismissed) the Full Court (Thackray, Strickland & Aldridge JJ) said at paragraph 24:

Given that the appellants accept that the documents sought in the subpoenas had apparent relevance to the proceedings, the subpoenas were appropriately issued. It was appropriate for the husband to serve the subpoenas upon the appellants because the husband had no other means of identifying what (if any) interest the wife had in her late father’s estate. It is clear that her Honour had regard to this by finding that the will was a document which had “forensic relevance” and “sufficient clear connection to the issues to be determined in this case to require its production and inspection.

As to the Wife’s interest in her late father’s estate the Full Court said at paragraph 26:

The nature and extent, if any, of the wife’s interest in her late father’s estate is clearly a relevant issue in the property proceedings. As the wife was unable to provide any information as to what interest she might have in that estate, the husband was forced to look elsewhere for that information. It was in the interests of justice for that relevant information to be provided to the husband.

As to the solicitor’s Affidavit at paragraph 28 the Full Court said:

Whilst it may be accepted that the solicitor for the appellants has, as far as he is aware, faithfully recorded what he regards as all relevant information from the will in his affidavit, it is possible that others might not take the same view.

If you are involved in a family law property matter it will be necessary that relevant documents be exchanged between the parties by way of disclosure or if the other side is not complying with the disclosure request (if your matter is in Court) you may have to issue a subpoena. It is very important that you obtain legal advice with respect to such matters.

If you have any questions about disclosure, subpoenas or your family law matter, please make an appointment with one of our solicitors.

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